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Sexual Orientation Moves One Step Closer to Being a Protected Characteristic


Federal law protects applicants and employees from negative treatment in connection with their employment, where that negative treatment is based on a protected characteristic. Traditionally, courts have interpreted the federal statute--Title VII of the Civil Rights Act of 1964—as protecting employees from discrimination and harassment because of their sex, but not their sexual orientation. In 2015, the Equal Employment Opportunity Commission (“EEOC”), the federal agency charged with enforcing Title VII of the Civil Rights Act of 1964( Title VII), announced that it was going to broaden its interpretation of the statute so that sexual orientation and transgender status were protected characteristics. EEOC has vigorously pursued litigation on these bases since then, but many courts have not agreed with its position. This week, the Seventh Circuit Court of Appeals issued an opinion squarely holding that Title VII’s prohibition of discrimination based on sex includes discrimination based on sexual orientation. It is the first Court of Appeals to expressly adopt EEOC’s position.

In Hively v. Ivy Tech Community College, the plaintiff was a part time professor at Ivy Tech Community College (“Ivy Tech”), and openly lesbian. She applied for, but did not receive, promotion to numerous full time teaching positions over a 5 year period. She filed a claim with the EEOC, and later filed suit against Ivy Tech, alleging that she was denied promotion to the full time positions solely because of her sexual orientation. The trial court dismissed the case based on earlier case law in the Seventh Circuit which held that sexual orientation was not protected by Title VII. On appeal, a three judge panel reluctantly affirmed the dismissal, noting that it seemed paradoxical that “a person can be married [to a member of the same sex] on Saturday and then fired on Monday for just that act” without any legal protection. Plaintiff sought an en banc review before all the judges on the Seventh Circuit, which was granted. The en banc opinion held that prior cases were not controlling and that sexual orientation was a protected characteristic under Title VII. Ivy Tech has said that it will not appeal the decision, so the Supreme Court will not have the chance to rule on the decision. The law in this area is definitely unsettled, with some courts adopting the expansive view of Title VII protections, while others cling to the traditional notion that the term “sex” in the statute does not include sexual orientation.

While the Ivy Tech decision is binding only in Indiana, Illinois and Wisconsin, that doesn’t mean employers in other states don’t need to worry about its impact. Claims of discrimination and harassment based on sexual orientation and LGBTQ status have exploded in the last few years. EEOC charges based on LGBTQ status more than doubled between 2013 and 2016. Courts in other jurisdictions may be persuaded to adopt the logic of the Ivy Tech case. Therefore, prudent employers should consult with counsel and determine whether to modify employment policies to include sexual orientation as a protected characteristic and provide training to managers to reduce the likelihood of a claim of discrimination or harassment based on sexual orientation.

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